In a recent judgement of the Supreme Court dated 02-7-2015, it was held that contractual employees cannot seek regularization with retrospective effect when regularisation policy was not in vogue
Facts of the case: The appellants were initially engaged on the post of Assistant Manager (Civil) by the respondent No.1–Greater Noida Industrial Development Authority on contractual basis for a period of 89 days. Initial appointments of the appellants were not made against any sanctioned posts.
However, their engagement continued from time to time, and the appellants have been continuously working on the said post. On 20.11.2002, the respondent authorities published an advertisement for engagement to the posts of Assistant Manager (Civil). The appellants and similarly situated persons who have been engaged on contractual basis filed a Writ seeking for a writ of mandamus directing the respondent-authorities to regularise their services on the post of Assistant Manager (Civil) and to quash the aforesaid advertisement dated 20.11.2002. The appellants contended that as they were working continuously, the respondent authorities instead of issuing a fresh advertisement should have regularised their services on the said post. By the judgment dated 28.09.2005, the learned Single Judge allowed the Writ Petition and quashed the advertisement dated 20.11.2002 and directed the respondent-authorities to consider the claim of the appellants for regularisation of their services on the existing vacancies which were directed to be filled up from the existing contractual employees as per the Regulation/Rules and fresh advertisement could be issued inviting applications from the general candidates only for remaining vacancies. Challenging the order of the learned single Judge, respondent authorities filed Special Appeal before the Division Bench.
Pending adjudication of Writ Petition before the single Judge, a scheme for regularization of the contractual employees was formulated wherein a policy was framed regarding regularization of 27 contractual employees who had been engaged initially for a period of 89 days and continued thereafter. The State Government, vide its letter dated 05.03.2008, approved the policy formulated by respondent No.1 for regularization of contractual employees. Pursuant to the policy decision, the appellants and other similarly situated contractual employees were appointed on the post of Assistant Manager (Civil) vide appointment orders dated 06.08.2010.
After joining the said post, the appellants filed a Claim Petition No. 174 of 2011 before the State Public Services Tribunal, Lucknow praying for regularization of their services from the date of existence of vacancies, that is 20.11.2002, the date on which the advertisement was issued, for appointment to the post of Assistant Manager (Civil) and with all consequential benefits. The tribunal, vide its judgment dated 23.06.2011, allowed the Claim Petition and directed the authorities to consider the appellants’ claim for regularization of their services on the existing vacancies with effect from 20.11.2002. Aggrieved by the order of the tribunal, the respondent authorities preferred a writ being Writ Petition
before the High Court. The High Court, vide judgment dated 29.10.2013 relying on the
Constitution Bench decision of this Court in Uma Devi’s case (supra) allowed the Writ Petition filed by the respondent authorities and quashed the order dated 23.06.2011 passed by the tribunal granting benefits to the appellants with retrospective effect. Additionally, the High Court also quashed the appointments of the appellants dated 06.08.2010 as ex-facie illegal and directed the authorities to initiate proceedings in respect of illegal appointments which were made in violation of Articles 14 and 16 of the Constitution ofIndia.
After considering the facts of the case Supreme Court held that the Division Bench was not right in setting aside the appointment of the appellants particularly when nobody challenged the appointment of the appellants. Since the appointment of the appellants were made pursuant to the policy of regularization, the High Court was not right in quashing the appointment of the appellants as the same were never in question before the High Court. The plea that was raised by the appellants was only to seek regularization with retrospective effect from 20.11.2002 and the consequential seniority.
The SC further held that the appellants were appointed on the post of Assistant Manager (Civil) only pursuant to the policy decision of the respondents for regularisation of contractual employees and thus, the appellants cannot seek for regularization with retrospective effect from 20.11.2002, that is when the advertisement was issued, because at that time regularisation policy was not in vogue. By policy of regularisation, it was intended to give the benefit only from the date of appointment. The Court cannot read anything into the policy decision which is plain and unambiguous. Having accepted the appointment orders dated 6.08.2010 and also joined the post, the appellants cannot turn round and claim regularisation with retrospective effect.
With this, the judgment of the High Court quashing the appointment of the appellants vide appointment order dated 06.08.2010 was set aside. Also the appellants’ plea for regularization with retrospective effect was declined. [Reference:- Supreme Court decision dated July 2, 2015 in CIVIL APPEAL NO. 4916 OF 2015 SURENDRA KUMAR & ORS. …APPELLANT (S) V/S GREATER NOIDA INDUSTRIALnDEVELOPMENT AUTHORITY & ORS. …RESPONDENT (S)]